1The Honorable Donald J. Stohr, United States District Judge for the Eastern

District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 98-1745

_____________

Robert A. Husmann, *

*

 Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Trans World Airlines, Inc., *

*

 Defendant - Appellee. *

_____________

 Submitted: September 25, 1998

 Filed: March 8, 1999

_____________

Before BOWMAN, Chief Judge, JOHN R. GIBSON and MORRIS SHEPPARD

ARNOLD, Circuit Judges.

_____________

JOHN R. GIBSON, Circuit Judge.

Robert A. Husmann sued Trans World Airlines for injuries he sustained in a

fall while boarding an airplane in London, England on October 5, 1991. The district

court1 denied Husmann's motion to remand the case to state court for lack of subject

matter jurisdiction and granted summary judgment to T.W.A., ruling that the two-year
2Convention for the Unification of Certain Rules Relating to International

Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted

in 49 U.S.C. § 40105 note (1994).

3Article 29 of the Convention provides that the right to damages shall be

extinguished if an action is not brought within two years from the date of arrival at

the destination. See 49 U.S.C. § 40105.

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statute of limitations contained in the Warsaw Convention2 barred Husmann's claim.

We affirm.

Husmann was injured on October 5, 1991, when he tripped over luggage while

boarding a T.W.A. flight from London, England to St. Louis, Missouri. On April 21,

1997, Husmann sued T.W.A. in Missouri state court. T.W.A. removed the case on

the basis of federal question jurisdiction, specifically, the Warsaw Convention. The

Warsaw Convention governs carrier liability for personal injuries sustained in an

accident during international travel. 

The district court granted summary judgment to T.W.A., concluding that

Husmann's claim was barred under the two-year statute of limitations contained in

the Warsaw Convention.3 Husmann appeals, arguing that his claim is not governed

by the Warsaw Convention and that the district court has no subject matter

jurisdiction. He also contends that even if the Warsaw Convention applies, his claim

was tolled during the time T.W.A. was under bankruptcy protection. 

I.

Husmann first claims that the district court had no subject matter jurisdiction.
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The existence of subject matter jurisdiction is a question of law that this court

reviews de novo. See Osborn v. United States, 918 F.2d 724, 729-730 (8th Cir.

1990). 

Husmann contends that his petition was based on Missouri tort law, not the

Warsaw Convention. He contends that the Convention does not completely preempt

personal injury claims arising out of incidents on international flights, and that state

law actions continue to exist. Because his petition in state court was not based on the

Warsaw Convention and sought less than the damage limit of the Convention,

Husmann argues there was no basis for federal jurisdiction under the "well pleaded

complaint rule." See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). The

well pleaded complaint rule provides that federal jurisdiction exists only when a

federal question is presented on the face of the plaintiff's properly pleaded complaint.

See id. Husmann contends that he relied only on state law, and that there is no basis

for deciding the case under federal law. Husmann concedes that if there is complete

preemption, then his claim is converted to a federal claim. "Once an area of state law

has been completely pre-empted, any claim purportedly based on that pre-empted

state law is considered, from its inception, a federal claim, and therefore arises under

federal law." Id. at 393. 

Husmann contends that his case is governed by the five-year statute of

limitations contained in Missouri law. See Mo. Rev. Stat. § 516.120 (1994).

Husmann admits that even under Missouri law his suit would "ordinarily" be barred

because he arrived at his destination on or about October 6, 1991, and he did not file

suit until April 17, 1997. He claims, however, that his suit was tolled during the

period when he could not bring suit under the automatic stay provision of section 362

of the Bankruptcy Code. See 11 U.S.C. § 362 (1994). 

T.W.A. filed a voluntary petition for bankruptcy on January 31, 1992. The

bankruptcy court lifted the permanent injunction and authorized suits against T.W.A.
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to the extent of insurance coverage on April 6, 1995. T.W.A. filed a second petition

for bankruptcy on June 30, 1995. Husmann claims these bankruptcy filings tolled the

statute for over three years, and thus, he falls within the five-year limit of Missouri

law. 

Although the Eighth Circuit has not decided whether the Warsaw Convention

preempts state law causes of action, we do not write on a blank slate. The Second and

Fifth Circuits have both considered the question and decided that the Warsaw

Convention preempts state law causes of action. See Shah v. Pan American World

Serv. Inc., 148 F.3d 84, 97-98 (2d Cir. 1998), cert. denied, 67 U.S.L.W. 3393, 3394

(U.S. Feb. 22, 1999) (Nos. 98-905, 98-907); Fishman v. Delta Airlines, Inc.,132 F.3d

138, 141 (2d Cir. 1998); In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267,

1278 (2d Cir. 1991), cert. denied, 502 U.S. 920 (1991); Potter v. Delta Airlines, Inc.,

98 F.3d 881, 884-87 (5th Cir 1996); Boehringer-Mannheim Diagnostics, Inc. v. Pan

American World Airways, Inc., 737 F.2d 456, 458 (5th Cir. 1984), cert. denied, 469

U.S. 1186 (1985). 

In finding federal preemption, the Second and Fifth Circuits relied on the fact

that the announced goals of the Warsaw Convention were to provide uniformity and

certainty in the laws governing international air carrier liability. The courts

concluded that allowing state causes of action for death and injuries suffered by

passengers on international flights would frustrate these goals. See Lockerbie, 928

F.2d at 1275; Boehringer, 737 F.2d at 459; Potter, 98 F.3d at 885. As the Second

Circuit succinctly stated: "[T]he existence of state causes of action would not only

result in the inconsistent application of law to the same accident, but also would cause

enormous confusion for airlines in predicting the law upon which they would be

called to respond." Lockerbie , 928 F.2d at 1276.

Husmann contends that remanding his claim to state court will not violate the

purposes of the Warsaw Convention because his claim does not exceed the specified
4See Campos v. Sociedad Aeronautica De Medellin Consolidada, S.A., 882 F.

Supp. 1056, 1058-59 (S.D. Fla. 1994); Lavadenz de Estenssoro v. American Jet,

S.A., 944 F. Supp. 813, 817-18 (C.D. Cal. 1996); Air Exp. Int'l v. Aerovias de

Mexico S.A. De C.V., 977 F. Supp. 1191, 1192-93 (S. D. Fla. 1977).

5The Supreme Court recently held that "recovery for a personal injury suffered

'on board' [an] aircraft or in the course of any of the operations of embarking or

disembarking, if not allowed under the Convention, is not available at all." El Al

Israel Airlines, Ltd. v. Tseng, 119 S. Ct. 662, 668 (1999) (internal citation omitted).

Tseng was based on an invasive but routine security search of an international

passenger which did not qualify as an "accident" under the Convention. See id. at

669. The Supreme Court expressly decided that "[g]iven the Convention's

comprehensive scheme of liability rules and its textual emphasis on uniformity, we

would be hard put to conclude that the delegates at Warsaw meant to subject air

carriers to the distinct, nonuniform liability rules of the individual signatory nations."

Id. at 672. The Supreme Court's decision in Tseng may control here, but at the very

least, it reinforces our decision that Husmann's state law cause of action is completely

preempted by the Warsaw Convention.

We also think the Supreme Court's holding that the Warsaw Convention

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maximum amount of damages under the Convention. For support, Husmann relies

on three district court decisions,4 which have held that the Warsaw Convention

supplies only the exclusive remedy for claims arising from international

transportation, and that state law claims are viable as long as they are subject to the

limitations of the Convention. After carefully considering the district court decisions,

we conclude that they are unpersuasive. Permitting a state court action would

undermine the "uniformity" and "certainty" embodied in the Warsaw Convention. 

See Zicherman v. Korean Air Lines Co., 516 U.S. 217, 230 (1996) (a primary

function of the Warsaw Convention is to foster uniformity in the laws governing

international air carrier liability); Lockerbie, 928 F.2d at 1275. The Second and Fifth

Circuits have provided a thorough and detailed analysis of their rulings, and we are

fully convinced that Husmann's state law cause of action is completely preempted by

the Warsaw Convention.5
provides the exclusive cause of action for injuries sustained during international air

transportation answers the dissent's argument that Husmann's claim is not removable

under the well-pleaded complaint rule. See also Luna v. Compania Panamena De

Aviacion, S.A. 851 F. Supp. 826, 831 (S. D. Tex. 1994) (approving removal of claims

covered by Warsaw Convention.) 

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We also conclude that even if the statute of limitations period of Missouri law

applied, Husmann could still not bring suit. Husmann relies on the automatic stay

provision of section 362 to come within the five-year period. The Bankruptcy Code

does not provide that a statute of limitations is tolled during the period of bankruptcy.

It provides that the action must be commenced within thirty days after notice of the

termination or expiration of the stay. See 11 U.S.C. § 108(c)(2). In this case, the

bankruptcy court terminated the stay on April 6, 1995. Husmann did not file suit until

April 21, 1997, well beyond the thirty-day window. T.W.A.'s second bankruptcy

filing on June 30, 1995, makes no difference. Husmann had thirty days from April

6, 1995, and so he was already out of time by June 30, 1995.

II.

Husmann next argues that even if the two-year statute of limitations period

contained in the Warsaw Convention applies, his suit was tolled during the time

T.W.A. was operating under the protection of the United States Bankruptcy Code.

Article 29(2) of the Convention states: "The method of calculating the period of

limitations shall be determined by the law of the court to which the case is

submitted." 

Mo. Rev. Stat. § 516.260 states: "Whenever the commencement of any suit

shall be stayed by an injunction of any court or officers authorized to grant the same,

the time during which such injunction shall be in force shall not be deemed any

portion of the [statute of limitations period]." Husmann claims that the statute of
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limitations was tolled from January 31, 1992 (when T.W.A. filed Chapter 11 petition)

until April 6, 1995 (when the bankruptcy court lifted the permanent injunction), and

then again from June 30, 1995 (when T.W.A. filed a second bankruptcy petition) until

August 2, 1995 (when T.W.A. was discharged from bankruptcy). Husmann claims

these two bankruptcy filings tolled the statute for more than three years, and so he

falls within the two-year limit of the Warsaw Convention.

We reject Husmann's argument that the tolling provision contained in Missouri

law applies under Article 29(2). The Second Circuit rejected a similar argument in

Fishman, 132 F.3d at 143-45. The court characterized the time limitation in Article

29 as "a condition precedent to suit, a kind of limitation that is often deemed not

subject to tolling." Id. at 143. The Second Circuit also pointed out that the drafters

of the Convention specifically rejected a proposed revision that would have allowed

the limitations period to be tolled according to the law of the forum court. Id. at 144.

The district court did not err in denying Husmann's motion to remand the case

to state court and in ordering summary judgment for T.W.A.

We affirm the judgment of the district court.

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

One may concede that El Al Israel Airlines, Ltd. v. Tseng, 1999 WL 7724, at

*4 (U.S. Jan. 12, 1999), holds that Mr. Husmann's state-law claim is preempted, but

that does not necessarily mean that it is removable to a federal district court. The

state courts are (indeed, they must be) open to preemption defenses, and the court

does not indicate why the preemption created by the Warsaw Convention is the kind

that allows a defendant to evade the well-pleaded complaint rule. Most of the cases
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that the court relies on were not removed to a federal court, and in none of them was

the question of whether removal was proper raised or decided.

Some highly respected commentators on matters touching on federal

jurisdiction have noted that "[b]ecause of the obvious federalism implications of

the complete-preemption doctrine, its application has been extremely limited by the

courts." C. Wright, A. Miller, and E. Cooper, 14B Federal Practice and Procedure:

Jurisdiction 3d § 3722.1, at 517 (1998). Indeed, those same commentators offer the

view that "most attempts by state court defendants to remove by invoking the

complete-preemption doctrine have been rebuffed by the federal courts on a motion

by the plaintiff to remand." Id., at 543-45. 

Most courts that have faced the question of complete preemption have asked

whether Congress intended not merely to provide a federal defense to a state cause

of action but to transform that cause of action into a federal one. To show that

Congress intended to "federalize" a state-law claim is a heavy burden for a defendant

to carry. He or she must show that the federal law in question (here, the Warsaw

Convention) contains a civil enforcement provision that creates a cause of action that

replaces the relevant state law and that Congress has specifically granted jurisdiction

to the federal courts to enforce the rights created. Only then can a court conclude that

Congress intended to make the claims removable. See Aaron v. National Union Fire

Insurance Company, 876 F.2d 1157, 1164-65 (5th Cir. 1989), cert. denied, 493 U.S.

1074 (1990). 

In the case before us, the court does not indicate why it believes Mr. Husmann's

case is completely preempted, and it seems clear to me that the defendant's removal

of the case cannot survive the application of the principles outlined in Aaron: The

defendant has not directed our attention to any statute, nor has my research revealed

any, specifically conferring federal jurisdiction over claims under the Warsaw

Convention. In these circumstances, I would be hard put to find a congressional
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intention to make this case removable. I would therefore reverse the judgment of the

district court and remand the case for remand to the state court from which, I believe,

it was improperly removed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.